Cali Court Case Shows Federal Judges Can’t Agree On What Constitutes Medical 'Misinformation'

P. Gardner Goldsmith | January 30, 2023
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Since November, when I reported on Alphabet/YouTube adopting the oh-so-trustworthy World Health Organization's “scientific” definitions and rhetoric as the corporate basis for smothering non-compliant, independent thinkers who might differ, and I also reported on the first suits to block enforcement of California’s Assembly Bill 2098 – the statute that went into effect this month, and allows the state to yank the “license” of any doctor who offers a patient what the state claims is “misinformation” about COVID-19 -- new developments on the legal front have arisen.

Reason’s Jacob Sullum offers a thumbnail of said judicial confusion over what is “misinformation” – confusion that actually clouds a much deeper problem that Americans rarely discuss.

“This week, a federal judge said California's definition of COVID-19 ‘misinformation’ that can trigger disciplinary action against physicians is unconstitutionally vague. But in another case involving the same law last month, a different federal judge rejected that claim. That stark disagreement highlights the California State Legislature's carelessness in drafting this statute and the speech-chilling puzzle that doctors would face in trying to comply with it.”

It's not just carelessness.

Article 1 Section 9 of the California Constitution explicitly prohibits the state from infringing on the right of free speech, and the U.S. Constitution prohibits state legislators from interfering with the fulfillment of private contract, so why can’t those principles also be considered in federal court?

The answer is that they should, but most judges seem averse to dealing with the heavier issue of actually discussing the fundamental rights purportedly protected by those documents.

Sullum adds:

“Under A.B. 2098, which took effect on January 1, ‘it shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information’ about ‘the nature and risks of the virus,’ ‘its prevention and treatment,’ and ‘the development, safety, and effectiveness of COVID-19 vaccines.’ The law defines ‘misinformation’ as ‘false information that is contradicted by contemporary scientific consensus contrary to the standard of care.’"

As I discussed in my November piece about the legal challenge to AB 2098, not only is this idea of granting the government the power to determine what is the “scientific consensus” apt to cause major problems for those doctors hoping speak freely or even to get “fair” treatment on myriad issues, the very concept of “scientific consensus” is a misnomer that overlooks the key ingredients in the scientific method: debate and the right to challenge so-called “authority.”

In that piece, I also noted that this “government can determine the ‘scientific consensus’ approach already has caused problems in tort law going back decades.

As enshrined in a spurious legal doctrine called the “Daubert Hearing” the U.S. Supreme Court in 1994 changed the standard by which “expert witnesses” could be called to testify by defendants or plaintiffs. Prior to the case “Daubert v Merrell Dow Pharmaceuticals,” juries heard testimony of those labeled “expert witnesses” as long as the witness had some kind of credential such as a degree in the field or long-standing expertise. The standard still was arbitrarily created by the government, but it allowed much wider leeway for the hearing of differing scientific views, letting juries judge the info for themselves.

“Daubert” saw the Supreme Court establish criteria that included the judge deciding if a proposed witness’s views were within the “scientific consensus.”

Related: Facemask Fauci Hits Hypocrisy Homer, Breaks OWN Rules At Nationals Game | MRCTV

Which means, of course, that, since the SCOTUS ruling, judges not only have to possess knowledge of the U.S. and state constitutions, of Common Law, and of statutes, they somehow must know the “scientific consensus” for every case that might involve science presented to them.

Galileo’s ideas about the solar system were not in conformity with the “scientific consensus.”

One wonders if the SCOTUS considered that in 1994, or if the collectivist politicians who passed AB 2098 gave it a thought.

Ironically, Sullum observes what, upon reflection, shows us just how infinitely insidious – and infinitely self-defeating -- this “truth defined through authority” mindset is.

He writes:

“That language, New York Times reporter Steven Lee Myers avers in what is supposedly an evenhanded news story, was ‘narrowly tailored’ to ‘address the waves of misinformation that have churned through the course of the pandemic.’"

Of course, anyone who paid attention to the contradictory, often incorrect, fact-less, boasts and claims of everyone from Donald Trump, to White House Coronavirus Task Force Member Debora Birx, to former National Institutes for Infectious and Airborne Disease (NIAID) head Anthony “Science” Fauci, to corrupt and deceitful officials at Pfizer to many of the Pfizer-tied pop media “news” networks that unquestioningly regurgitated many of the fraudulent “scientific” claims, know that we suffered censorship, de-platforming, and financial losses simply for offering skepticism.

One wonders what Mr. Meyers would think if, hypothetically, a political ruling elite suddenly said people had to be “licensed” in order to engage in the practice of offering news reports about “important” COVID medical information, and what he would do if, at any point in his dazzlingly insightful career as a thrilling expert reporter, he might write something that the government didn’t think was “in the scientific consensus,” and they pulled his license.

Sullum notes:

“William B. Shubb, a judge on the U.S. District Court for the Eastern District of California, did not think so. In Høeg v. Newsom, Shubb issued a preliminary injunction against enforcement of A.B. 2098 on Wednesday. He said the state's definition of misinformation violates the right to due process because it ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited’ and ‘is so standardless that it authorizes or encourages seriously discriminatory enforcement.’

Fred W. Slaughter, a judge on the U.S. District Court for the Central District of California, reached a strikingly different conclusion in McDonald v. Lawson on December 28. Rejecting a motion for a preliminary injunction, Slaughter said the law was clear enough to give physicians fair notice of what they can say to patients without jeopardizing their licenses.”

All of which misses the mark.

As the cases move up the jurisprudential ladder towards the almighty U.S. Supreme Court, and the put-upon medical professionals wait to find out the future for their right to speak about COVID-19, we can remember that at the heart of this is the absurd and insulting assumption that the government can “professionally license” people or not “license them” – meaning they can prohibit people from engaging in peaceful market activity.

As the bent idea of a government silencing Mr. Meyer’s reporting indicates, it is one of the hallmarks of fascism to claim the power to tell people whether they can or cannot engage in free commerce with willing customers. Like speech suppression, professional licensing prohibits the consumer from freely determining value and adjudging truth. We all lose in both instances.

Every party involved with California’s AB 2098 – from the judges, to the politicians, to the doctors, to the taxpayers observing from afar – should wake up to the problems at the heart of this: the effrontery of professional licensing, and the conceit of politicians who think they can tell people whether they can live in peace.

Related: California Doctors Sue Newsom Gov't Over Anti-Speech Licensing Law | MRCTV

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